Weeks v. Etter

• Decision Date: 30 April 1884
• Citation: 81 Mo. 375
• Parties: WEEKS v. ETTER, Appellant.
• Court: Missouri Supreme Court

81 Mo. 375

WEEKS

v.ETTER, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Moniteau Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

Rice & Walker and Silver for appellant.

The judgment of the justice being one of nonsuit, there should have been a motion filed to set the same aside, and without such motion the appeal was a nullity. R. S., 3041. The instruction given for plaintiff is not a proper one in a replevin suit, where the only question at issue is the right to the possession of the chattel. 2 Wharton Ev., § 1331; Gartside v. Nixon, 43 Mo. 139. The instruction is further erroneous in declaring the possession of the hog in October, 1879, to be presumptive evidence of title. The suit was instituted November 3rd, 1879, and the time should have applied to the institution of the replevin action, if an instruction of the kind should be given at all. Plaintiff, to recover, must show that he is entitled to the immediate possession. Cross v. Hulett, 53 Mo. 397.

Moore & Williams and Draffen & Williams for respondent.

The judgment in this case was not a nonsuit, within the meaning of Revised Statutes, section 3041, and the justice, therefore, had no power to set it aside, and plaintiff was not bound, as a preliminary to the right of appeal, to move the justice to set it aside. Hannibal, etc., Plank Road Co. v. Robinson, 27 Mo. 396. The instruction given for plaintiff was correct. The appellant did not preserve the evidence upon which it was based, and this court cannot decide whether or not it was properly given. Crews v. Blodgett, 64 Mo. 453. Before the court can hold it was improper, it must decide it enunciated a principle, that under no state of facts was the law. The converse has frequently been decided by this court. Van Zant v. Hunter, 1 Mo. side p. 72. An actual possession is evidence of title against every one who does not show a better title. In the absence of other evidence, a prior lawful possession is proof of a better title. Simmons v. Austin, 27 Mo. 307.

EWING, C.

This was a statutory proceeding before a justice of the peace for the claim and delivery of personal property, to-wit, “a black berkshire barrow hog, of the value of $6.” The defendant moved to dismiss, because the hog was in custody of the law and not subject to replevy. This motion was sustained. The plaintiff then appealed to the circuit court of Miller county, where the defendant moved to dismiss for want of jurisdiction, upon the ground that the judgment of the justice was a nonsuit, and the plaintiff did not move to set it aside, as required by statute, within ten days, nor at any time, before appeal. This motion the court overruled; whereupon the defendant prayed for a change of venue which was awarded, and the case sent to Moniteau county. Without any further preliminary matters the case was tried in the Moniteau circuit court, where there was a verdict and judgment for the plaintiff for $6 with 1 cent damages, from which the defendant appealed to this court.

I. The first and second points made by the appellant, that there was no affidavit and bond for appeal from the justice, nor a statement of the cause of action, have no longer any force, since the amended record filed in obedience to the writ of certiorari discloses the fact that the statement was filed, as also the affidavit and appeal bond.

II. The third point made by the appellant is, that “the judgment of the justice being one of nonsuit, there should have been a motion filed to set it aside, and without such motion, the appeal was a nullity.” That part of section 3041, upon which appellant relies, is as follows: “No appeal shall be allowed in any case unless the following requisites be complied with: First, the appeal must be made within ten days after the judgment rendered, or, when judgment is by default or nonsuit, within ten days after the refusal of the justice to set aside the default or nonsuit and grant a new trial.” Section 2948 provides: “In all cases, not otherwise especially provided for, if the plaintiff fail to appear, in person or by agent, within three hours after the time appointed for the trial of the cause, the justice shall render judgment of nonsuit against him with costs.” The third subdivision of section 2947 provides: “Third, if the plaintiff fail to appear,...